State v. Gregg ( 2020 )

NOTICE: SLIP OPINION
(not the court’s final written decision)
The opinion that begins on the next page is a slip opinion. Slip opinions are the
written opinions that are originally filed by the court.
A slip opinion is not necessarily the court’s final written decision. Slip opinions
can be changed by subsequent court orders. For example, a court may issue an
order making substantive changes to a slip opinion or publishing for precedential
purposes a previously “unpublished” opinion. Additionally, nonsubstantive edits
(for style, grammar, citation, format, punctuation, etc.) are made before the
opinions that have precedential value are published in the official reports of court
decisions: the Washington Reports 2d and the Washington Appellate Reports. An
opinion in the official reports replaces the slip opinion as the official opinion of
the court.
The slip opinion that begins on the next page is for a published opinion, and it
has since been revised for publication in the printed official reports. The official
text of the court’s opinion is found in the advance sheets and the bound volumes
of the official reports. Also, an electronic version (intended to mirror the
language found in the official reports) of the revised opinion can be found, free of
charge, at this website: https://www.lexisnexis.com/clients/wareports.
For more information about precedential (published) opinions, nonprecedential
(unpublished) opinions, slip opinions, and the official reports, see
https://www.courts.wa.gov/opinions and the information that is linked there.
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
IN CLERK’S OFFICE SEPTEMBER 17, 2020
SUPREME COURT, STATE OF WASHINGTON
SEPTEMBER 17, 2020
SUSAN L. CARLSON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 97517-5
Respondent, )
)
v. ) En Banc
)
SEBASTIAN MICHAEL GREGG, )
)
Petitioner. )
) Filed: September 17, 2020
JOHNSON, J.—This case addresses the constitutionality of RCW
9.94A.535(1) placing the burden of establishing mitigating circumstances on
juvenile defendants sentenced in adult court. A second issue is whether a guilty
plea may be withdrawn based on affirmative misinformation of a four-year felony
firearm registration requirement. Sebastian Gregg seeks reversal of a published
Court of Appeals decision affirming his sentence based on convictions of first
degree murder and first degree burglary, both with firearm enhancements, and first
degree arson. We affirm and conclude that the allocation of the burden of proof
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Gregg, No. 97517-5
under the Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, is
constitutional and that Gregg’s plea was not involuntary.
FACTS AND PROCEDURAL HISTORY
On July 6, 2016, Gregg and Dylan Mullins shot and killed Michael Clayton.
Gregg was 17 years old, Mullins was 18 years old, and Clayton was 19 years old.
Gregg and Mullins entered the home of Clayton through a window while Clayton
and his father were away. Gregg and Mullins broke into a gun safe in the home,
removed weapons, and waited for Clayton to return. While they waited, Gregg and
Mullins discussed killing Clayton and burning the house down after they killed
him. When Clayton came home, both Gregg and Mullins shot him and he died.
Gregg and Mullins then set fire to the home, fleeing the scene. They hid the
weapons behind some bushes and went to a local library with the purpose of
creating an alibi. After spending time at the library, Gregg and Mullins then stole a
Kent parks and recreation department truck and retrieved some of the stashed
firearms. The pair drove to Grays Harbor County, where they were arrested for
possessing a stolen truck. While in custody, both Gregg and Mullins confessed to
the murder.
Gregg was charged with first degree murder and first degree burglary, both
while armed with a firearm, and first degree arson. Under RCW
13.04.030(1)(e)(v)(A) these charges were filed in adult court. Gregg pleaded guilty
2
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Gregg, No. 97517-5
as charged. In the plea agreement form, the portion regarding the firearm
registration requirement was crossed out. During the plea colloquy, the judge asked
Gregg whether he understood that the crossed out paragraphs did not apply to him,
and Gregg indicated that he understood. Despite this misinformation, the firearm
registration requirement was ordered as part of the sentence as required by RCW
9.41.330(3).
At a sentencing hearing, both the State and Gregg presented substantial
evidence regarding the crime and Gregg’s culpability. Gregg sought an
exceptionally low sentence of 144 months and presented extensive mitigation
evidence regarding his youthfulness and the circumstances of his upbringing,
including expert opinions. The sentencing hearing involved about six days of
testimony. The court rejected Gregg’s arguments in a detailed oral decision and
held that Gregg’s youth in this case did not substantially diminish his culpability
and that no substantial and compelling reason existed to impose a sentence below
the standard range. Gregg was sentenced within the standard range to 37 years,
which included 10 years for firearm enhancements. Gregg appealed, challenging
the constitutionality of RCW 9.94A.535(1) and asserting that the misinformation
as to the firearm registration requirement established grounds for withdrawal of his
plea.
3
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Gregg, No. 97517-5
The Court of Appeals affirmed, holding that the statute was constitutional
under both our state and the federal constitutions. State v. Gregg, 9 Wn. App. 2d
569, 574, 444 P.3d 1219 (2019). The Court of Appeals also held that the firearm
registration requirement was a collateral consequence to the plea, concluding the
affirmative misinformation as to the requirement did not render the plea
involuntary. Gregg petitioned, and this court granted review. 1 State v. Gregg, 194
Wn.2d 1002, 451 P.3d 341 (2019).
ANALYSIS
I. Burden of Proving Mitigating Circumstances
We review questions of constitutional law de novo. State v. Ramos, 187
Wn.2d 420, 433, 387 P.3d 650 (2017). The Eighth Amendment to the United
States Constitution prohibits “cruel and unusual punishments.” Article I, section 14
of our state constitution contains a similar provision that prohibits “cruel
punishment.” The statutory provision at issue here provides that “[t]he court may
impose an exceptional sentence below the standard range if it finds that mitigating
circumstances are established by a preponderance of the evidence.” RCW
9.94A.535(1). Both the State and Gregg agree that a defendant bears the burden of
proving that there are substantial and compelling reasons justifying an exceptional
1
The Fred T. Korematsu Center for Law and Equality and the Juvenile Law Center both
filed amicus briefs in support of Gregg.
4
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Gregg, No. 97517-5
sentence downward under this provision, which we have recognized in Ramos, 187
Wn.2d at 445. We also have held that youth is not a per se mitigating factor in the
context of sentencing young adults. In re Pers. Restraint of Light-Roth, 191 Wn.2d
328, 330, 422 P.3d 444 (2018).
In Ramos, we considered whether the SRA provision at issue here placing
the burden on a juvenile defendant in adult court to establish mitigation violated
the Eighth Amendment—noting that the United States Supreme Court disavowed
this argument in Montgomery v. Louisiana, 577 U.S. __, 136 S. Ct. 718, 735, 193
L. Ed. 2d. 599 (2016) (discussing Miller v. Alabama, 567 U.S. 460, 466, 132 S. Ct.
2455, 183 L. Ed. 2d 407 (2012)). Ramos, 187 Wn.2d at 445. We reasoned:
[Ramos] argues that the State must carry the burden of proving life
without parole is appropriate in each individual case. We do not
question the logical appeal of this reasoning. However, it attaches a
procedural significance to Miller’s holding that the Court expressly
disavowed. Montgomery, 136 S. Ct. at 735.
....
Miller does not authorize this court to mandate sentencing
procedures that conflict with the SRA unless it is shown that the SRA
procedures so undermine Miller’s substantive holding that they create
an unacceptable risk of unconstitutional sentencing. Ramos has not
made this showing as to the SRA’s allocation of the burden of proving
that an exceptional sentence below the standard range is justified. We
thus decline to hold that this allocation is unconstitutional as applied
to juvenile homicide offenders.
Ramos, 187 Wn.2d at 445-46 (emphasis added). While Gregg does not assert that
his sentence of 37 years is unconstitutional, he asserts that it is unconstitutional for
5
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Gregg, No. 97517-5
a standard range sentence to be presumptively valid for a juvenile sentenced in
adult court and the burden should be on the State to prove that youth was not a
mitigating circumstance in every case. Ramos expressly rejected this argument
under an Eighth Amendment analysis, and Gregg’s assertion that the State should
bear the burden because children are less likely to be deserving of standard range
sentences mirrors the argument rejected in Ramos. Gregg cites no intervening
United States Supreme Court authority that would question our holding in Ramos
that the allocation of the burden of proof under RCW 9.94A.535 is constitutional
under the Eighth Amendment as applied to juveniles.
Although Ramos based its holding on the Eighth Amendment, we have not
addressed whether the statutory burden of proof is constitutional under article I,
section 14 of our state constitution. Gregg notes in his briefing that we have found
our state constitution to be more protective in some circumstances. Gregg does not
seek to have the sentence he received declared as categorically barred; instead,
Gregg seeks a procedural change aiming to reduce the risk that a juvenile will be
sentenced in adult court without appropriate consideration of the juvenile’s
youthfulness. However, as in Ramos, neither party here has offered an analysis of
how our constitution should be interpreted differently than the federal constitution
with respect to this unique claim using our analysis set out in State v. Gunwall, 106
Wn.2d 54, 720 P.2d 808 (1986). What Gregg seems to seek is a rewrite of SRA
6
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Gregg, No. 97517-5
procedures by this court specific to juvenile sentencing in adult court. Gregg cites
no persuasive authority that would support this court rewriting the statutory
provisions at issue here.
At most, Gregg quotes language and discussion from cases to support his
constitutional arguments. Gregg quotes and cites State v. Houston-Sconiers, 188
Wn.2d 1, 9, 391 P.3d 409 (2017), to support his assertion that our constitution
requires shifting the burden of proving mitigation. In Houston-Sconiers, we held
that the Eighth Amendment provides sentencing courts with discretion to consider
the mitigating qualities of youth and impose sentences below SRA guidelines for
juvenile offenders in adult court. That case, however, was decided on Eighth
Amendment grounds, not independently under article I, section 14. Further, Gregg
seemingly concedes that Houston-Sconiers did not cite Ramos or mention the
burden of proving mitigation at sentencing or the statutory provision at issue here.
Houston-Sconiers cannot be read to have overturned Ramos or to have required
invalidation of the statute.
Gregg also quotes State v. Bassett for the assertion that we have found
article I, section 14 to be more protective of juveniles than the federal constitution.
192 Wn.2d 67, 82, 428 P.3d 343 (2018). In Bassett, we engaged in a Gunwall
analysis to determine if and how article I, section 14 was more protective than the
Eighth Amendment in the context of juvenile sentences of life without the
7
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Gregg, No. 97517-5
possibility of parole, concluding that it was more protective in this context and
such sentences were categorically barred. We also recognized in Bassett that a
categorical bar analysis offers the better framework compared to a proportionality
analysis for analyzing cruel punishment claims made by juveniles under article I,
section 14. Though a categorical bar analysis is generally better suited for
analyzing cruel punishment claims made by juveniles, it offers a poor framework
for analyzing the procedural burden-shifting claim made by Gregg.
Yet, even applying a categorical bar framework, Gregg’s claim fails. Under
that analysis we first consider “whether there is objective indicia of a national
consensus against the sentencing practice at issue,” then the court applies its own
independent judgment to determine whether the practice is unconstitutional based
on precedent from our cases and the court’s own understanding and interpretation
of article I, section 14. Bassett, 192 Wn.2d at 83.
Turning first to the national consensus prong, we find no support. The out-
of-state cases Gregg cites to support his position are less helpful and
distinguishable. These cases deal with the allocation of the burden of proof in the
context of life without parole sentences and do not relate to the procedural
requirements in the context of mitigation for juveniles not facing life without the
possibility of parole. See State v. Riley, 315 Conn. 637, 110 A.3d 1205 (2015);
State v. Hart, 404 S.W.3d 232, 241 (Mo. 2013); Commonwealth v. Batts, 640 Pa.
8
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Gregg, No. 97517-5
401, 163 A.3d 410 (2017); Davis v. State, 2018 WY 40, 415 P.3d 666, 681. Gregg
has cited no cases suggesting that a national consensus exists for a burden-shifting
presumption in favor of mitigation for all juveniles when sentenced in adult court.
As to the second prong, Gregg asserts that it is unconstitutional for a
juvenile to bear the burden of proving mitigation because children are different.
This claim appears to be based on the risk that a trial court will fail to appropriately
take youth into account when sentencing juveniles in adult court. Under Gregg’s
argument, any categorical bar would be as to sentences where youth is not
appropriately taken into consideration.
As a whole, our cases recognize that children are different and procedural
differences exist for juveniles sentenced in adult court. We have held that trial
courts, when sentencing juveniles, have discretion to impose a sentence below the
standard range and may, where required, disregard mandatory enhancements when
supported by evidence presented at sentencing as to mitigating qualities of youth.
Houston-Sconiers, 188 Wn.2d at 21. We have gone further and held that sentences
of life without the possibility of parole are categorically barred for juveniles in
adult court. Bassett, 192 Wn.2d at 73. However, those principles do not support
invalidating the statutory procedure required to be applied nor the burden to
present evidence and testimony to support the relief sought.
9
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Gregg, No. 97517-5
Gregg offers no helpful analytical framework that would assist and guide
sentencing courts to better identify what sentences would be appropriate in light of
a juvenile’s youthfulness. Instead, he asserts that trial courts should engage in a
case-by-case analysis, much like they already do, but must start with a general
presumption that a mitigated sentence is required unless the State proves
otherwise. Without explicitly stating as much, Gregg asks this court to rewrite the
SRA and declare standard range sentences to be exceptional sentences when
applied to juveniles. To reach this result, we would not only need to declare the
SRA structure partially unconstitutional but we would also need to overrule some
of our cases. We disagree with the arguments made by Gregg, and he has not
shown that such relief is appropriate in this case.
The State argues that this claim is more appropriately analyzed under a due
process lens. However, Gregg acknowledges that he is not bringing a due process
claim. While a due process analysis under procedural or substantive due process
offers a framework for analyzing whether shifting the burden of proof is
appropriate, Gregg does not assert a due process claim, thus we will not reach this
issue.
II. Misinformation
The second issue addresses whether Gregg’s plea was involuntary because
he was affirmatively misinformed about a consequence of his plea, a four-year
10
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Gregg, No. 97517-5
firearm registration requirement. We conclude that his plea was voluntary because,
as the Court of Appeals correctly reasoned under our cases, this firearm
registration requirement is not punishment, thus it does not enhance Gregg’s
sentence. Also, the circumstances do not rise to the level of a manifest injustice
such to require allowing the withdrawal of a plea.
A plea must be knowing, voluntary, and intelligent to be valid. State v.
Mendoza, 157 Wn.2d 582, 587, 141 P.3d 49 (2006). Before a guilty plea is
accepted, the defendant must be informed of all direct consequences of the plea.
Mendoza, 157 Wn.2d at 588. Whether a consequence is direct turns on whether
“‘the result represents a definite, immediate and largely automatic effect on the
range of the defendant's punishment’.” State v. Ross, 129 Wn.2d 279, 284, 916
P.2d 405 (1996) (emphasis added) (internal quotation marks omitted) (quoting
State v. Barton, 93 Wn.2d 301, 305, 609 P.2d 1353 (1980)). Collateral
consequences are consequences that are not direct. Under CrR 4.2(f) “[t]he court
shall allow a defendant to withdraw the defendant’s plea of guilty whenever it
appears that the withdrawal is necessary to correct a manifest injustice.”2
Affirmative misinformation as to a direct consequence renders a plea
constitutionally invalid. Mendoza, 157 Wn.2d at 589. We have not, however,
2
Oddly, Gregg does not seek to withdraw his plea but asks this court to remand with the
direction that Gregg may withdraw his plea if he so chooses.
11
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Gregg, No. 97517-5
adopted a per se rule for affirmative misinformation as to collateral consequences.
Gregg asserts that the firearm registration requirement is a direct consequence
because it flows directly from the conviction. But the question as to whether a
consequence is direct also turns on whether it enhances the sentence or
punishment.
We determined that a similar, though more severe, sex offender registration
requirement was a collateral consequence in State v. Ward, 123 Wn.2d 488, 493,
869 P.2d 1062 (1994). In Ward, we analyzed whether a sex offender registration
requirement was an ex post facto law and whether the registration requirement was
a direct or collateral consequence of the plea. In our ex post facto analysis, we
reasoned that the registration requirement was not punitive because it did not
impose any significant burden and the restrictions the legislature placed on
disclosure of the information indicated the legislative intent was regulatory and not
punitive. From this analysis we held that the registration requirement was not a
direct consequence because it was not “punishment,” thus “it does not enhance
[the] sentence or punishment.” Ward, 123 Wn.2d at 513.
The Court of Appeals here found the analysis in Ward to be instructive and
concluded that the firearm registration requirement was a collateral consequence.
We agree. Here, any burden imposed by the firearm registration requirement is not
burdensome because RCW 9.41.333(2) lists six pieces of information a registrant
12
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Gregg, No. 97517-5
must supply. Further, the firearm registration information is not available to the
public, which suggests a regulatory legislative intent. This regulatory intent and
minor burden establishes that the registration requirement is not punitive, thus not
a direct consequence.
Gregg also argues that affirmative misinformation concerning a collateral
consequence should always render a plea involuntary. For support, Gregg cites two
cases: State v. Turley, 149 Wn.2d 395, 399, 69 P.3d 338 (2003), and State v.
A.N.J., 168 Wn.2d 91, 116, 225 P.3d 956 (2010). These cases do not support his
proposition.
Turley involved misinformation as to a direct consequence. There we
addressed, for the purposes of withdrawal of a plea, whether a plea agreement is
treated as indivisible or may be separated if misinformation is given only with
respect to one charge and not other charges. We held that a mandatory community
placement requirement was a direct consequence of a plea and misinformation
rendered the plea invalid. Turley, 149 Wn.2d at 399. Turley did not discuss or
involve collateral consequences and does not control the analysis here.
As to A.N.J., we did not hold that affirmative misinformation as to a
collateral consequence renders a plea involuntary per se. Instead, we reasoned that
if the trial court found on remand that A.N.J. was misinformed that he could have
his sex offender conviction removed from his record, such misinformation rose to
13
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Gregg, No. 97517-5
the level of a manifest injustice in the context of an ineffective assistance of
counsel claim. A.N.J., 168 Wn.2d at 116. This reasoning was not as to whether
A.N.J. would have to register as a sex offender, as was the case in Ward, but was
as to whether that conviction would follow A.N.J. forever. Here, the difference is
that Gregg was not misinformed that he could have his felony conviction removed
from his record, but he was given incorrect information about a firearm registration
requirement. We agree with the holding of the Court of Appeals that the
misinformation in Gregg’s case does not rise to the level of a manifest injustice.
CONCLUSION
We affirm the Court of Appeals. RCW 9.94A.535(1) placing the burden on
juvenile defendants in adult court to prove mitigating circumstances is
constitutional under article I, section 14 of our state constitution. Further, the
affirmative misinformation as to a four-year firearm registration requirement does
not render Gregg’s plea involuntary because the registration requirement under
RCW 9.41.330(3) is a collateral consequence and the circumstances in this case do
not rise to the level of a manifest injustice.
14
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Gregg, No 97517-5
WE CONCUR:
______________________________________
15
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Gregg, No. 97517-5 (González, J., dissenting)
No. 97517-5
GONZÁLEZ, J. (dissenting) — I respectfully dissent. Science,
Washington law, and the United States Constitution recognize that children
are different from adults. See ch. 13.40 RCW; State v. Houston-Sconiers,
188 Wn.2d 1, 8, 391 P.3d 409 (2017) (quoting Miller v. Alabama, 567 U.S.
460, 480, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012)). Because of those
differences, children are presumed to have diminished culpability for their
misdeeds and much greater capacity for growth and redemption. Miller, 567
U.S. at 479. Our juvenile justice system, however imperfectly, recognizes
this and gives children far more opportunities for redemption and
rehabilitation than our criminal justice system offers to adults. RCW
13.40.010, .080; State v. B.O.J., 194 Wn.2d 314, 330-31, 449 P.3d 1006(2019). An adjudication of guilt in juvenile court is not, as a matter of law, a
conviction of a crime. RCW 13.04.240.
But children do commit violent acts, some of which, like the one
committed here, are reprehensible. Over the years, our legislature has
decided that some children charged with certain offenses should be tried in
1
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Gregg, No. 97517-5 (González, J., dissenting)
adult court and subject to adult sentences, regardless of the individual child’s
culpability and capacity. See, e.g., LAWS OF 1997, ch. 338, § 7; RCW
13.04.030(1)(e)(v)(A)-(C).
Many of the statutes that effectively recategorized some children as
adults were predicated on the discredited theory that some children were
“juvenile superpredators.” S.B. REP. ON ENGROSSED SECOND SUBSTITUTE
S.B. 6160, 65th Leg., Reg. Sess. (Wash. 2018); State v. Watkins, 191 Wn.2d
530, 550, 423 P.3d 830 (2018) (Yu, J., dissenting). “Juvenile superpredators
were characterized as ruthless sociopaths who lacked a moral conscience
and were unconcerned about the consequences of their actions and
undeterred by punishment.” Br. of Jeffrey Fagan et al. as Amici Curiae in
Supp. of Pet’rs at 8 (U.S. No. 10-9647 (2012)) (Fagan Brief). Based on that
pernicious theory, states across the nation, including ours, removed many
young people from the juvenile justice system and locked them away in
adult prisons for very long sentences—or even the rest of their lives. Id. at
15-16 (citing PATRICIA TORBET ET AL., OFFICE OF JUV. JUST. & DELINQ.
PREVENTION, U.S. DEP’T OF JUST., STATE RESPONSES TO SERIOUS AND
VIOLENT JUVENILE CRIME, xv (July 1996),
www.ncjrs.gov/pdffiles/statresp.pdf [https://perma.cc/K3U5-FL4T]), 20.
The theory that our nation was beset by “juvenile superpredators” was
at best wrong and at worst deeply racist. Jane Rutherford, Juvenile Justice
Caught between the Exorcist and A Clockwork Orange, 51 DEPAUL L. REV.
715, 721-22 (2002). To his credit, Professor Dilulio, the scholar who had
originally popularized the term, has disavowed the theory before the United
2
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Gregg, No. 97517-5 (González, J., dissenting)
States Supreme Court. State v. Null, 836 N.W.2d 41, 56 (Iowa 2013) (citing
Fagan Brief at 14-19).
We now know that children are different, that the human brain
continues to mature into the mid-20s, and that many teenagers simply “lack
the ability to properly assess risks and engage in adult-style self-control” that
would make an adult sanction appropriate. Null, 836 N.W.2d at 55 (citing
ELIZABETH S. SCOTT & LAURENCE STEINBERG, RETHINKING JUVENILE
JUSTICE 34 (2008)). At least some of these facts have constitutional
significance under the Eighth Amendment, and some legislation predicated
on that old discredited criminological theory are being significantly revised.
See Miller, 567 U.S. at 476-77; LAWS OF 2018, ch. 162.
Now, as a matter of constitutional law, trial judges must meaningfully
consider the fact that children are different when determining the just
sentence for crimes they committed as children. In re Pers. Restraint of
Domingo-Cornelio, No. 97205-2, slip op. at 1 (Wash. Sept. 17, 2020),
https://www.courts.wa.gov/opinions/; In re Pers. Restraint of Ali, No.
95578-6, slip op. at 1 (Wash. Sept. 17, 2020),
https://www.courts.wa.gov/opinions/; Houston-Sconiers, 188 Wn.2d at 21;
Miller, 567 U.S. at 480. Now, only “the rarest of children, those whose
crimes reflect ‘irreparable corruption,’” may be sentenced to die in prison.
Montgomery v. Louisiana, 577 U.S __, 136 S. Ct. 718, 726, 193 L. Ed. 2d
599 (2016) (internal quotation marks omitted) (quoting Miller, 567 U.S. at
479-80). Such sentences must be carefully considered and rarely imposed.
Id. (citing Miller, 567 U.S. at 479-80). Similarly, judges must meaningfully
3
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Gregg, No. 97517-5 (González, J., dissenting)
consider a child’s culpability and capacity for change before imposing a
standard range sentence designed for adults. Houston-Sconiers, 188 Wn.2d
at 9; State v. Ramos, 187 Wn.2d 420, 428, 387 P.3d 650 (2017). We find
these requirements to be a significant and material change in the law
requiring retroactive application. Domingo-Cornelio, slip op. at 1-2; Ali,
slip op. at 2. While Houston-Sconiers was discussed at sentencing, I have
significant doubt whether the trial court fully appreciated its obligation to
consider youth as a mitigator. 6 Report of Proceedings (Dec. 14, 2017) at
677-88. Instead, the court seemed to discount the possibility that youth
played a role and declined to depart from an adult standard range. Id. at 688.
The Sentencing Reform Act of 1981 (SRA), ch. 9.94A RCW, was
written long before Professor Dilulio repudiated the “juvenile superpredator”
theory and Miller held that children could not be constitutionally subject to
mandatory life sentences. LAWS OF 1981, ch. 137; Miller, 567 U.S. at 479.
The SRA contemplates that the defendant, in every case, has the burden of
showing that a downward departure from the sentencing guidelines is
appropriate. RCW 9.94A.535(1). But given what we now know, only in
rare cases is it appropriate to sentence juveniles as if they were adults. This
must be included in how we approach and structure sentencing for children.
I am deeply troubled by amicus’s conclusion that the vast majority of
children who have been transferred to adult court since Houston-Sconiers
are receiving standard sentences designed for adults. Br. of Fred T.
Korematsu Center for Law and Equality as Amicus Curiae in Supp. of Pet’r
at 8-9 (citing WASH. STATE CASELOAD FORECAST COUNCIL, STATISTICAL
4
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Gregg, No. 97517-5 (González, J., dissenting)
SUMMARY OF ADULT FELONY SENTENCING FISCAL YEAR 2018, at 71 (2018),
www.cfc.wa.gov/PublicationSentencing/StatisticalSummary/Adult_Stat
_Sum_FY_2018.pdf [https://perma.cc/24ME-BNR5], and WASH. STATE
CASELOAD FORECAST COUNCIL, STATISTICAL SUMMARY OF ADULT FELONY
SENTENCING YEAR 2019, at 72 (2019),
www.cfc.wa.gov/PublicationSentencing/StatisticalSummary/Adult_Stat
_Sum_FY_2019.pdf [https://perma.cc/6S4Z-VCH9]). Our juvenile justice
system is focused on accountability and rehabilitation, not retribution. TODD
DOWELL, THE JUVENILE OFFENDER SYSTEM IN WASHINGTON STATE 2 (2019)
(citing RCW 13.40.010(2)).1 It cannot be the case that the diminished
culpability of a child does not warrant a routine downward departure from
an adult standard range sentence. See generally Roper v. Simmons, 543 U.S.
551, 571, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). But data collected by the
forecast council suggests the opposite is happening.
The promise of the Eighth Amendment, Miller, and Houston-Sconiers
must not be merely rhetorical. We are better than that. Since, as a matter of
fact and law, children are different, trial judges must start from the
presumption that a downward departure from the standard range is
appropriate. Cf. Ramos, 187 Wn.2d at 436; Montgomery, 136 S. Ct. at 726
(citing Miller, 567 U.S. at 479-80). That presumption should be followed
unless the judge is persuaded that the case before them is one of the rare
cases where a standard range adult sentence is appropriate. If it is one of
1
http://waprosecutors.org/wp-content/uploads/2019/09/Understanding-the-Juvenile-System-in
-WA-2019-Edition-rev.-08-26-2019.pdf [https://perma.cc/Z2HT-H6B9]
5
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Gregg, No. 97517-5 (González, J., dissenting)
those rare cases where a standard range adult sentence is appropriate, that
should be explained on the record.
I respectfully dissent.
_______________________________
6
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Gregg, No. 97517-5
(Yu, J., concurring in dissent)
No. 97517-5
YU, J. (concurring in dissent) — I agree with the majority that State v.
Ramos, 187 Wn.2d 420, 387 P.3d 650 (2017), based its holding on the Eighth
Amendment to the United States Constitution and that we have not addressed
whether the statutory burden of proof provided by the Sentencing Reform Act of
1981 (SRA), ch. 9.94A RCW, is constitutional as applied to juveniles in
accordance with article I, section 14 of the Washington Constitution.
I also do not disagree with the majority’s summary of our cases on juvenile
culpability. However, I join the dissent today because we have enough guidance
from our cases and scientific data to reach the question before us without having to
strike down the SRA, a sentencing scheme designed for adults. The lack of robust
briefing on the state constitutional question is disappointing, but it does not
preclude us from holding that youth is a mitigating factor when juveniles are
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
State v. Gregg, No. 97517-5
(Yu, J., concurring in dissent)
sentenced in adult court. Indeed, a Gunwall 1 analysis is not always required for us
to reach a state constitutional question, so long as there is a “principled basis for
departing from federal law.” Chong Yim v. City of Seattle, 194 Wn.2d 682, 692,
451 P.3d 694 (2019).
The question before us is whether there is a procedural presumption that
should be afforded to youth declined from juvenile court. The fact of youthfulness
does not fade away because the prosecutor has opted to try an individual in adult
court. As noted by Justice González, Miller2 recognizes that children are
constitutionally different from adults for the purposes of sentencing juvenile
offenders in adult court. See Ramos, 187 Wn.2d at 428. I therefore share the
conclusion that children in adult court should not have to prove their youthful
characteristics in order to receive a sentence below the standard range, and I
respectfully concur in the dissent.
______________________________
1
State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986).
2
Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012).
2